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On May 22, 2009, the Court of Appeal for Ontario clarified the circumstances in which employers can conduct random drug testing. In its decision, Imperial Oil and Communications, Energy & Paperworkers Union of Canada, Local 900, theCourt of Appeal determined that random drug tests, absent reasonable cause, are a breach of the collective agreement.

Background

In 1992, Imperial Oil introduced a comprehensive alcohol and drug policy at its refinery in Nanticoke, Ontario. The policy, which included random unannounced alcohol and drug testing, was challenged in 1998 under the Ontario Human Rights Code (Code). The decision arising from this human rights complaint was reviewed by the Court of Appeal in the highly publicized Entrop case released in 2000. In the Entrop decision, the Court of Appeal upheld Imperial Oil’s right to random unannounced testing for alcohol by use of a breathalyser for employees in safety-sensitive positions. However, the Court of Appeal agreed with the Board of Inquiry that random unannounced drug testing by urinalysis could not measure current impairment, only past drug use. As such, it was deemed impermissible.

In light of the Entrop decision, Imperial Oil immediately ceased conducting random drug tests by way of urinalysis at the Nanticoke refinery, and in response to the concerns enumerated in the Entrop decision, began to investigate other drug-testing technologies that would identify current impairment. During the course of its research, Imperial Oil discovered that oral fluid (saliva) testing technology (saliva swab testing) could show current impairment of cannabis. As such, Imperial Oil revised its random drug testing policy in July 2003 to include the new random saliva swab testing. In response to the revised policy, the Communication, Energy and Paperworkers Union, Local 900 filed a policy grievance on behalf of its bargaining members at the Nanticoke refinery, challenging the new form of drug testing.

Arbitral Award

In a lengthy decision issued in December 2006, an arbitration board (Board) chaired by Michel Picher found that Imperial Oil’s revised random drug-testing policy was impermissible and unenforceable. After reviewing the terms of the collective agreement, the facts of the case, and a vast array of arbitral decisions, the Board concluded that the policy’s random drug-testing measures were only permissible where they formed part of a continuing employment contract or the rehabilitation of an employee clearly identified as having a "problem of alcohol or drug use." In this case, the Board found that absent reasonable cause or evidence of employee impairment, the drug-testing policy expressly violated Article 3.02 of the collective agreement, which required the parties to foster a workplace wherein individuals are treated "with respect and dignity."

Furthermore, the Board noted that the new saliva swab drug-testing technology does not render an immediate response of current drug impairment ― and in fact took a few days before a result of impairment could be rendered. As such, the Board intimated that this new technology did not provide a complete answer to the concerns posed in the Entrop decision.

In light of the foregoing considerations, the Board ultimately deemed the random drug-testing policy null and void.

Divisional Court

Imperial Oil applied to the Divisional Court for judicial review of the Board's decision, arguing that the Board had committed a reviewable error by amending or failing to apply the parties' collective agreement, by making and relying on findings of fact when there was no evidence before it to support those findings, and by disregarding the Code in its interpretation of the collective agreement.

In a unanimous decision, the Divisional Court dismissed Imperial Oil's application for judicial review. The court ruled that the Board did not alter or amend the parties' collective agreement, because there was no express language in the collective agreement permitting random alcohol or drug testing. The court held that while the Board had found that the Union acquiesced in random alcohol testing, it found no such acquiescence with respect to random drug testing. Furthermore, the court found that it was reasonable for the Board to interpret the scope of the collective agreement's relevant provisions by applying "the balancing of interests test" developed in the case law to weigh the employer's "interest in providing a safe workplace ... against the employees' privacy interest." Finally, the court found that the Board’s interpretation of Article 3.02 was not inconsistent with the Code, which "provides minimum standards," and "does not provide an exhaustive guide as to the meaning of dignity and respect in the workplace generally."

As such, the court ruled that the Board had rightfully interpreted the collective agreement "in light of the arbitral jurisprudence, the parties' own language and the evidence before it."

Court of Appeal

Imperial Oil appealed the Divisional Court’s decision to dismiss its application for judicial review to the Court of Appeal, claiming the Divisional Court had erred by failing to find that the Board was acting beyond its jurisdiction by relying on facts not established by the record, amending or failing to apply the collective agreement and interpreting the collective agreement without proper regard for the Code. In a unanimous decision, the Ontario Court of Appeal dismissed the appeal on all accounts.

Writing for the Court of Appeal, Justice Cronk affirmed that the company's policy of conducting randomized, mandatory saliva mouth swab testing of employees in safety-sensitive positions was null and void. The Court of Appeal ruled that the Board’s decision that Imperial Oil’s policy of random drug testing without reasonable cause was an "unwarranted intrusion" on employees' privacy and "an unjustifiable affront to their dignity" was reasonable in the circumstances.

What Does the Court Of Appeal’s Decision Mean for Employers?

Although this decision provides direction for employers in Ontario, courts in other provinces have not followed the same approach. In particular, the Alberta Court of Appeal in Chiasson v. Kellogg Brown took a more permissive approach to employer drug testing in safety-sensitive workplaces, and expressly noted that the Chiasson case may be in direct conflict with the Court of Appeal for Ontario’s decision in Entrop. As such, it is possible that the judicial debate may end up being resolved by the Supreme Court of Canada in the near future.

Until this legal debate has been fully resolved, union and non-union employers, particularly those in Ontario, should take note of some key points arising from the Court of Appeal’s decision in Imperial Oil:

Union employers in Ontario who are subject to collective agreement provisions that broadly outline an employee’s right to "respect and dignity" in the workplace must approach random drug testing with caution. An arbitrator, at least in Ontario, may find that such a provision limits an employer’s ability to conduct randomized drug testing absent reasonable cause to do so. Despite the foregoing, it is important to remember that a union employer may negotiate the right to conduct such tests into its collective agreement as long as the resulting provision satisfies the minimum requirements under the Code.

Non-union and union employers in Ontario should also note that this decision makes it clear that saliva swab drug-testing technology does not render an immediate response of current drug impairment and therefore does not really provide a complete answer to the concerns posed in the Entrop decision. In other words, the judiciary has not endorsed this type of drug testing as a complete answer to the problems associated with urinalysis drug tests.

In conclusion, both union and non-union employers alike should take the time to review your current drug and alcohol testing policies to ensure these tests are being carried out in accordance with your contractual and legislative requirements.